In September, the European Commission published a revised Return Handbook as part of its of the 2015 the European Agenda on Migration. According to the Commission, the review presents next steps towards “a stronger, more effective and fairer EU migration and asylum policy”. Among its key priorities is “a more effective EU policy on return”, with states being encouraged to “streamline their return policies” in line with the March 2017 Commission Recommendation and the Renewed Action Plan on Returns.
While the review itself says little on immigration detention, the Handbook dedicates a large and expanded section to the subject – here we look at what’s new on immigration detention in the revised Handbook.
What is the Return Handbook?
First published in October 2015, the Return Handbook aims to provide guidance to national authorities on standards and procedures for implementing the Return Directive 2008/115/EC. It was published following the rise in the number of refugees and migrants arriving in the region in 2015. While not legally binding, it includes practical commentary and guidance on the implementation of each article of the Directive with examples, extracts from human rights standards and references to relevant ECJ judgements. Over one fifth of the original Handbook was dedicated to immigration detention.
The revised Handbook
The revised return Handbook features additional guidance aimed at achieving the Commission priority of more effective return procedures.
The Commission has been clear that it builds on its Recommendation on Returns in March 2017, which encouraged states to use more and longer immigration detention. This was in a bid to increase return rates, which at an average of 36% in the region were seen as highly unsatisfactory.
The recommendation drew heavy criticism from civil society organisations and the Council of Europe Human Rights Commissioner that it was “likely to lead to human rights violations without furthering other goals, such as facilitating the processing of asylum claims or promoting dignified returns.”
An expanded 20-page section in the revised Handbook is dedicated to immigration detention, with commentary on: circumstances justifying detention, review of detention, ending of detention, detention conditions etc.
So what’s new in terms of the Commission’s guidance on immigration detention?
More and longer immigration detention
In line with the Commission’s March 2017 Recommendation on Returns, the revised Handbook includes new guidance for states to “bring detention capacity in line with actual needs,” effectively encouraging states to expand detention capacity. The revised Handbook also recommends that Member States provide for the maximum detention period allowed by the Returns Directive (18 months) whereas this was previously left to the Member States discretion.
The underlying assumption is that more and longer detention will lead to increased returns, whereas the evidence points to the opposite: as the IDC has previously emphasized, international research finds that immigration detention discourages cooperation and decreases the motivation and ability of individuals to contribute to case resolution.
A step backwards: ignoring international standards on child immigration detention
The amended Handbook includes a significant revision regarding child detention. It recommends, in line with the Commission’s March 2017 recommendation, that:
national legislation should not preclude the possibility to place minors in detention, where this is strictly necessary to ensure the execution of a final return decision, and insofar as less coercive measures cannot be applied in effectively in the individual case.
Essentially, this new inclusion encourages Member States to detain child migrants as a measure of last resort to effectuate returns. This clearly goes against a growing body of international law that children should never be detained for migration reasons as it is never in their best interests and that States should therefore “expeditiously and completely cease” the immigration detention of children and families. EU governments seemed positively headed in this direction when they committed to work to end child immigration detention as part of the New York Declaration, adopted by the UN General Assembly on 19 September 2016.
Instead of discouraging Member States from prohibiting child immigration detention, the Commission should provide guidance and support to governments to develop alternatives which allow children’s migration cases to be resolved in the community, in line with their best interests.
Expanded guidance on alternatives to immigration detention
On the positive side, the new Handbook includes an expanded section and additional commentary on alternatives to immigration detention – something that was conspicuously missing from the Commission’s March 2107 Recommendation on Returns.
Newly added guidance includes that:
- Member States should develop and use “a wide range of alternatives to address the situation of different categories of third-country nationals”
- Member States should provide in national law for alternatives to detention that can achieve the same objectives of detention (i.e. prevent absconding, avoid that the third-country national avoids or hampers return) and national authorities should assess whether these are sufficient and effective in the individual case
- UNHCR Options paper 1: Options for governments on care arrangements and alternatives to detention for children and families provides ‘practical examples of good practices on alternatives to detention’
Significantly, the text also now recognizes that as well as “tailored individual coaching, which empowers the returnee to take in hand his/her own return, early engagement and holistic case management focused on case resolution has proven to be successful”.
This is particularly welcome given the strong evidence that the most effective alternatives are based on engagement rather than enforcement: they use holistic and tailored case management to support migrants to engage with immigration processes. However, such alternatives, which often involve civil society to build trust with migrants, have yet to be sufficiently developed in the region. This means that states continue to rely on enforcement-based measures including detention.
Earlier this year, a network of NGOs running case management-based pilot projects in Europe was set up with the aim of building a knowledge base to support governments and other stakeholders to develop further engagement-based alternatives to detention.
Detention of stateless persons
The revised Handbook draws Member States attention to the “specific situations of stateless persons, who may be unable to benefit from consulate assistance by third-countries in view of obtaining a valid identity or travel documents”. It recommends that, in the light of the judgement of the ECJ on Case C-357/09, Kazoev, Member States should make sure that there is a reasonable prospect of removal that justifies imposing or prolonging detention.
The revised Return Handbook was published as part of the Commission’s Mid-term review of the Agenda on Migration, which is the latest in a series of policy documents to prioritise increased return rates in the region. In this context, the revised Handbook includes commentary which, if followed, could give a green light to Member States to use more and longer detention, in line with the Commission’s March 2017 Recommendation on Returns.
At the same time, the revised Handbook provides welcome additional guidance on alternatives to immigration detention – something which was missing from the March 2017 recommendation on returns. Significantly, the Handbook recommends that Member States develop a wider range of alternatives, including “holistic case management focused on case resolution.” This could provide an opportunity to work with governments on developing the kind of alternatives that are effective in resolving people’s cases in the community without the use of detention, thus achieving better outcomes for both governments and the migrants involved.
This article was authored by Anna Sklovsky, completing her communications internship with the International Detention Coalition in 2017.